[1] Whether a “money claim” constitutes an object of brokerage under Article 3 of the former Licensed Real Estate Agents’ Business Affairs and Report of Real Estate Transactions Act and Article 2 of the Enforcement Decree of the same Act (negative)

[2] In a case where the Defendant, a broker, was indicted on charges of exceeding the maximum amount of commission under the Act on Business Affairs of the former Licensed Real Estate Agents and Report of Real Estate Transactions by receiving money from Byung when the contract for the secured debt was established between Eul and Byung, after purchasing the secured debt which was established by the right to collateral security as the right to collateral security B from the association Eul and obtaining a lower price after filing a request for auction, the case holding that the judgment below which found the Defendant guilty erroneous in the misapprehension of legal principles as to brokerage act and application of the provision on the limit of commission under the same Act

[1] In full view of the provisions of Article 2 subparag. 1 and Article 3 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act (amended by Act No. 12374, Jan. 28, 2014; hereinafter “former Licensed Real Estate Agents Act”), and Article 2 of the Enforcement Decree of the same Act, “money claims” are not objects of brokerage under Article 3 of the former Licensed Real Estate Agents Act and Article 2 of the Enforcement Decree of the same Act. The brokerage of monetary claims does not constitute brokerage under the former Licensed Real Estate Agents Act, and thus, the ceiling of brokerage commission under the former Licensed Real Estate Agents Act does not apply to the brokerage of monetary claims.

[2] In a case where the Defendant, a broker, was prosecuted for more than KRW 624 million on the land owned by Gap, the maximum debt amount of which is KRW 624 million, and KRW 630 million, and KRW 567 million, which is the maximum debt amount of which is set up as the livestock industry cooperative Eul, Byung purchased the secured debt set up as the right to collateral from Eul association, and was awarded a successful bid at a low price after filing a request for auction, the case holding that the Defendant was guilty of having received not only the amount of monetary claims under Article 3 of the former Licensed Real Estate Agent Act, but also the amount of monetary claims under Article 2 of the Enforcement Decree of the former Licensed Real Estate Agent Act, which are not subject to brokerage but also the amount of KRW 50 million under the former Licensed Real Estate Agent Act, based on Byung’s business Affairs and Report of Real Estate Transactions (amended by Act No. 12374, Jan. 28, 2014; hereinafter referred to as the “former Licensed Real Estate Agent Act”), and the Defendant received comprehensive monetary claims from Byung, under the former Enforcement Decree.

[1] Article 2 subparagraph 1 (see current Article 2 subparagraph 1) of the former Licensed Real Estate Agents Act (Amended by Act No. 12374, Jan. 28, 2014); Articles 3 (see current Article 3), 32 (3) (see current Article 32 (4)), 33 subparagraph 3 (see current Article 33 subparagraph 3 of the Licensed Real Estate Agents Act), 49 (1) 10 (see current Article 49 (1) 10 of the Licensed Real Estate Agents Act) of the Enforcement Decree of the Licensed Real Estate Agents Act (see current Article 30 of the Licensed Real Estate Agents Act); Article 2 (1) of the former Enforcement Decree of the Licensed Real Estate Agents Act (Amended by Presidential Decree No. 2522, Jul. 28, 2014); Article 30 of the Licensed Real Estate Agents Act (see current Article 40 of the Licensed Real Estate Agents Act); Article 2 of the former Enforcement Decree of the Licensed Real Estate Agents Agents Act (see current Article 314) of the Licensed Agents Act)

[1] Supreme Court Decision 2005Do6054 Decided September 22, 2006 (Gong2006Ha, 1856) Supreme Court Decision 2006Do3800 Decided October 27, 2006

Defendant

Defendant

Law Firm Jung-jin, Attorneys Seo Jin-jin et al.

Suwon District Court Decision 2017No1371 decided August 11, 2017

The judgment of the court below is reversed, and the case is remanded to the Gu Government District Court.

The grounds of appeal are examined.

1. Summary of facts charged

On May 15, 2013, the Defendant, a broker under the former Licensed Real Estate Agents’ Business Affairs and Report of Real Estate Transactions Act (amended by Act No. 12374, Jan. 28, 2014; hereinafter “former Licensed Real Estate Agents Act”), arranged for the Nonindicted Party to purchase, from the ○○ Livestock Cooperative, the secured debt on which the right to collateral security (hereinafter “○○ Livestock Cooperative”) is established, which is a maximum debt amounting to KRW 624 billion, and the secured debt (hereinafter “○○ Livestock Cooperative”) for the third parcel of land in △△△△-dong, ○○○○, ○○○○ Livestock Cooperative (hereinafter “○○ Livestock Cooperative”) to be awarded a successful bid at a lower price after filing a request for auction.

According to the former Licensed Real Estate Agents Act, the upper limit of brokerage commission that the defendant can receive in the above brokerage is KRW 5,670,000. Nevertheless, the Defendant received KRW 50,000,000 in total from the Nonindicted Party on May 15, 2013 and KRW 50 million on June 25, 2013, when the sales contract of the secured debt established by the right to collateral security was established between the ○○ Livestock Cooperatives and the Nonindicted Party.

2. The judgment of the court below

The lower court affirmed the first instance judgment convicting the Defendant of the facts charged of the instant case. The Defendant mediated “claim” that does not fall under the object of brokerage as prescribed by the former Licensed Real Estate Agents Act to the Nonindicted Party, and claimed that KRW 50 million received from the Nonindicted Party is not a brokerage commission, but a contract payment. However, the lower court rejected the Defendant’s assertion.

3. Supreme Court Decision

The lower judgment is difficult to accept as it is.

A. Comprehensively taking account of the provisions of Article 2 subparag. 1, Article 3, and Article 2 of the Enforcement Decree of the former Licensed Real Estate Agents Act, “money claims” are not objects of brokerage under Article 3 of the former Licensed Real Estate Agents Act and Article 2 of the Enforcement Decree of the same Act. The act of mediating monetary claims does not constitute brokerage under the former Licensed Real Estate Agents Act, and thus, the ceiling of brokerage commission under the former Licensed Real Estate Agents Act does not apply to the act of mediating monetary claims (see, e.g., Supreme Court Decision 2005Do6054, Sept. 22, 2006).

B. Examining the reasoning and records of the lower judgment in light of the foregoing legal doctrine, the following determination is possible.

The Defendant, along with the monetary claim sales contract between ○○ Livestock Cooperative and the Nonindicted Party, mediated the transfer of the right to collateral security along with the monetary claim sales contract between the Nonindicted Party, and received KRW 50 million from the Nonindicted Party. The transfer of the monetary claim sales contract and the right to collateral security is indivisible relationship, and the said KRW 50 million includes not only the transfer of the right to collateral security but also the commission for the mediation of the sales and purchase of monetary claims. As above, it cannot be determined that the amount comprehensively received as a honorarium for the transactional history constitutes brokerage commission under the former Licensed Real Estate Agent Act. Therefore, it cannot be concluded that the Defendant received brokerage commission in excess of the limit set forth in the former Licensed Real Estate Agent Act (see, e.g., Supreme Court Decision 2005Do6054, supra).

Nevertheless, the judgment of the court of first instance which found the Defendant guilty of the facts charged of this case is erroneous in the misapprehension of the legal principles as to the application of brokerage act and brokerage commission limit provisions under the former Licensed Real Estate Agents Act, and thereby adversely affected the judgment.

4. Conclusion

The Defendant’s appeal is with merit, and the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices

Justices Lee Dong-won (Presiding Justice)